Citation Nr: 0307414
Decision Date: 04/17/03 Archive Date: 04/24/03
DOCKET NO. 98-11 166 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for joint pain, to include
as due to undiagnosed illness.
REPRESENTATION
Appellant represented by: Non Commissioned Officers
Association
ATTORNEY FOR THE BOARD
L. J. Wells-Green, Counsel
INTRODUCTION
The veteran served on active duty from May 1979 to June 1995.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a May 1998 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Louisville,
Kentucky. In September 1999 and December 2000 the Board
remanded the case for further development. The requested
development has been completed and the case has been returned
to the Board for further appellate action.
FINDINGS OF FACT
1. Joint pain of the shoulders, elbows, wrists and hands has
been variously diagnosed as arthralgia and polyarthralgia.
2. Arthralgia and polyarthralgia were not demonstrated in-
service, and there is no competent evidence relating these
disorders to service.
3. Objective indications of chronic disability due to joint
pain of the shoulders, elbows, wrists and hands is not shown.
CONCLUSION OF LAW
Joint pain, including due to an undiagnosed illness, was not
incurred in or aggravated by the veteran's active military
service; nor may it be presumed to have been so incurred or
aggravated. 38 U.S.C.A §§ 1110, 1117, 1118, 1131, 5103,
5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.303,
3.306, 3.317, 3.326 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
First, VA has a duty to provide an appropriate claim form,
instructions for completing it, and notice of information
necessary to complete the claim if it is incomplete. 38
U.S.C.A. § 5102 (West 2002); 38 C.F.R. § 3.159(b)(2). In
this case, there is no issue as to providing an appropriate
application form or completeness of the application.
Second, VA has a duty to notify the veteran of any
information and evidence needed to substantiate and complete
a claim, and notice of what part of that evidence is to be
provided by the claimant and what part VA will attempt to
obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). In this case, VA notified the claimant by a letter
dated in April 2001 that VA would obtain all relevant
evidence in the custody of VA and Federal agencies. The
veteran was advised that he could send additional evidence
regarding treatment for his claimed disability. In other
words, this letter specifically outlined what VA would do,
and what the veteran needed to do. The appellant has not
responded to the letter. The duty to notify the appellant of
the necessary evidence and of his responsibility for
obtaining or presenting that evidence has been fulfilled.
Third, VA has a duty to assist claimants to obtain evidence
needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. In this case, the veteran's available
service department medical records are of record. His VA
treatment records have been associated with the claims files.
The claimant has provided authorizations, and his private
medical records, as well as Social Security Administration
records were obtained to the extent possible. There is no
indication that other Federal department or agency records
exist that should be requested. The claimant was notified of
the need for a VA examination, and several were accorded him.
He failed to report to the two most recently scheduled
examinations. The veteran was asked to advise VA if there
were any other information or evidence he considered relevant
to his claim so that VA could help him by getting that
evidence. He was also advised what evidence VA had
requested, and notified in the statement of the case and
supplemental statements of the case what evidence had been
received. There is no indication that any pertinent evidence
was not received. Therefore, the duty to notify the
appellant of any inability to obtain records does not arise
in this case. Id. Thus, VA's duty to assist has been
fulfilled.
Finally, to the extent that VA may have failed to fulfill any
duty to notify and assist the veteran, the Board finds that
error to be harmless. Of course, an error is not harmless
when it "reasonably affect(s) the outcome of the case." ATD
Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
In this case, however, because there is not a scintilla of
evidence that any failure on the part of VA to further comply
with the VCAA reasonably affects the outcome of this case,
the Board finds that any such failure is harmless. While
perfection is an aspiration, the failure to achieve it in the
administrative process, as elsewhere in life, does not,
absent injury, require a repeat performance. Miles v. M/V
Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985).
Factual Background
The veteran's March 1991 Southwest Asia
Demobilization/Redeployment medical evaluation shows that he
reported having no relevant disease or injuries while
deployed in that theater. A March 1991 medical history
report also shows that the veteran reported neither joint
deformity, nor painful or "trick" shoulder or elbow.
In a June 1995 medical history report, the veteran denied any
joint deformity or painful or "trick" shoulder or elbow.
The accompanying separation examination report shows that
clinical evaluation of both the upper and lower extremities
was normal.
January 1996 treatment records from Hardin Hospital indicate
that the veteran was in a car accident. In addition to
complaints of headaches and back pain (for which service
connection is currently in effect), he complained of right
wrist pain.
An April 1996 VA general medical examination report noted
complaints of left knee pain since the early 1990's.
Physical examination resulted in a diagnosis of left knee
pain.
A July 1997 VA Persian Gulf Registry examination records
relevant complaints of joint pain when moving the hands,
wrists, elbows and shoulders. Examination revealed full
range of motion and full muscle strength in the upper
extremities. The diagnosis was joint pain, polyarthralgia.
The examiner opined that there was no functional impairment
on a daily basis.
The veteran submitted his initial claim for joint pain in
September 1997, claiming it was related to his service in the
Gulf War. In November 1997, he further described his joint
pain as being located in his elbows, wrists and hands.
During a December 1997 VA general medical examination, the
veteran complained of constant aching pain in his hands and
that his right wrist hurt and was sometimes weak. He
reported that his right hand had been crushed in 1979. His
claims file was reviewed. The examiner stated that there was
no known etiology for the veteran's complaints, other than
his prior crush injury. The diagnosis was arthralgia. The
examiner opined that there was insufficient clinical evidence
at the present time to warrant a diagnosis of an acute or
chronic disorder or residuals thereof.
The veteran was afforded a VA electromyography (EMG) study of
his right hand in January 1998. The impression was early
sensorimotor peripheral polyneuropathy. There was no
evidence of carpal tunnel syndrome.
During a March 2000 VA orthopedic examination, the veteran
noted the onset of aching pain in his elbows and hands in
1991. Examination of the upper extremities revealed no
muscle wasting and no swelling around the elbows, wrists or
finger joints. The examiner noted that the veteran had vague
bilateral elbow, wrist and hand aching with some periodic
numbness in his hands. The examiner was not able to make a
specific diagnosis and opined that there was no evidence of
any disability.
An August 2000 rating decision denied service connection for
polyneuropathy.
In December 2000, the Board remanded the claim to obtain
previous VA examination reports, and failing that, to provide
the veteran with orthopedic, neurology and rheumatology
examinations. The remand notified the veteran of the
consequences should he fail to report to any scheduled
examinations without good cause. The evidence of record
shows that the veteran failed to report to an orthopedic
examination scheduled in early May 2002 and that he cancelled
a neurology examination later that month. The December 2002
supplemental statement of the case noted that the veteran did
not report to his examinations. The veteran has not provided
good cause for his failure to report to his examinations and
has not requested he be rescheduled for such.
Analysis
The veteran alleges that he has joint pain in his bilateral
shoulders, elbows, wrists and hands as a result of his
service in the Persian Gulf. He believes that he might be
eligible to service connection for his joint pain under the
provisions of 38 C.F.R. § 3.317.
The Board finds that the veteran was advised that an
examination was requested in April 2002. The Board further
finds that the December 2000 remand advised him of the
consequences should he fail to report to the examination
without good cause. Although the VAMC letter to the veteran
advising him of the date of the examination is not of record,
the evidence shows that he failed to report for a VA
examination scheduled in May 2002 and was later advised of
this failure in the December 2002 Supplemental Statement of
the Case. The veteran did not respond. Accordingly, the
Board finds that the RO has complied with the December 2000
remand and that another remand is not warranted.
When a claimant, without good cause, fails to report for an
examination scheduled in conjunction with an original
compensation claim, the claim shall be rated based on the
evidence of record. 38 C.F.R. § 3.655 (2002). Examples of
good cause include, but are not limited to, the illness or
hospitalization of the claimant, death of an immediate family
member, etc. 38 C.F.R. § 3.655(a). As the veteran failed to
report for a VA examination scheduled in conjunction with an
original compensation claim, his claim must be rated based on
the evidence of record. Id.
Service connection for disabilities due to undiagnosed
illnesses is granted if there is evidence that the claimant
(1) is a "Persian Gulf veteran;" (2) who exhibits objective
indications of chronic disability resulting from an illness
or combinations of illnesses manifested by one or more signs
or symptoms; (3) which became manifest either during active
service in the Southwest Asia theater of operations during
the Persian Gulf War, or to a degree of 10 percent or more
not later than December 31, 2006; and (4) that such
symptomatology by history, physical examination, and
laboratory tests cannot be attributed to any known clinical
diagnosis. Objective indications of chronic disability are
described as either objective medical evidence perceptible to
a physician or other, non-medical indicators that are capable
of independent verification. See 38 U.S.C.A. § 1117; 38
C.F.R. § 3.317.
During the pendency of this appeal, a new law was passed
which amended the statutes affecting compensation for
disabilities occurring in Persian Gulf War veterans. 38
U.S.C.A. §§ 1117, 1118; Veterans Education and Benefits
Expansion Act of 2001, Public Law 107- 103, 115 Stat. 976
(2001). These changes became effective on March 1, 2002.
Among other things, these changes revised the term "chronic
disability" to "qualifying chronic disability," and included
an expanded definition of "qualifying chronic disability" to
include (a) an undiagnosed illness, (b) a medically
unexplained chronic multi-symptom illness (such as chronic
fatigue syndrome, fibromyalgia, and irritable bowel syndrome)
that is defined by a cluster of signs or symptoms, or (c) any
diagnosed illness that the Secretary determines, in
regulations, warrants a presumption of service connection.
38 U.S.C.A. § 1117(a)(2)(B).
Pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991),
where the law or regulation changes after a claim has been
filed or reopened but before the administrative or judicial
appeal process has been concluded, the version most favorable
to the appellant normally applies, absent Congressional
intent to the contrary. Thus, the Board will analyze the
veteran's Persian Gulf War undiagnosed illness claim under
the revised criteria.
The claims files indicate that the RO has not specifically
documented their consideration of this change in the law.
Because, however, of the clear lack of entitlement to service
connection under either criteria (as detailed below), the
veteran is not prejudiced by the Board's initial
consideration of the revised statute. Therefore, there is no
due process bar for the Board to proceed with the appeal.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
The Board acknowledges that several examiners have not
provided diagnoses for the veteran's complaints. While his
complaints have not been diagnosed, neither have they been
attributed to an undiagnosed illness or to a medically
unexplained chronic multi-symptom illness. The objective
evidence reveals that the veteran first complained of
symptoms in 1997, and although he has continued to complain
of such symptoms there is no objective medical evidence or
independently verifiable non-medical evidence of his joint
pain. Without objective evidence of chronic disability
service connection is not in order. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
To the extent that his complaints have been identified as
either arthralgia or polyarthralgia, the Board notes that the
provisions of 38 C.F.R. § 3.317 do not apply to diagnosed
disorders. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
A disorder may be directly service connected if the evidence
of record, regardless of its date, shows that the claimant
had a chronic disorder in service, or during an applicable
presumptive period, and that the veteran still has such a
disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488 (1997). Such evidence must be medical unless it
relates to a disorder that may be competently demonstrated by
lay observation. If the disorder is not chronic, it may
still be service connected if the disorder is observed in
service or an applicable presumptive period, continuity of
symptomatology is demonstrated thereafter, and competent
evidence relates the present disorder to that symptomatology.
Id.
The preponderance of the evidence is, however, also against
the veteran's claim for service connection for joint pain in
his upper extremities on a direct basis. Although the July
1997 examiner diagnosed polyarthralgia, and the December 1997
examiner diagnosed arthralgia, the July examiner found no
functional impairment and the December examiner found
insufficient clinical evidence to determine whether the
condition was acute or chronic. Furthermore, there is no
evidence in his service medical records of any complaints,
findings, treatment or diagnosis that could even remotely be
associated with upper extremity polyarthralgia or arthralgia.
Moreover, there is no competent medical evidence of record
that the veteran currently has arthralgia or polyarthralgia.
In this regard, the Board acknowledges the 1997 examination
reports, but finds more probative the March 2000 VA
examination report indicating that there was no evidence of
any disability. This report was based on examination and a
thorough review of the claims files and consideration of all
prior studies. Although the veteran asserts he currently has
joint pain as a result of his Persian Gulf War service, he is
not competent to provide evidence that requires medical
knowledge. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Service connection is not in order in the absence of any
residuals or evidence of a current disability. See
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Finally,
even assuming that the appellant currently suffers from
arthralgia or polyarthralgia, there is no competent evidence
linking either disorder to service. Accordingly, the claim
of entitlement to service connection for joint pain on a
direct basis must be denied.
In reaching this decision the Board has considered the
doctrine of reasonable doubt. However, as the preponderance
of the evidence is against the veteran's claim, the doctrine
is not for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Service connection for joint pain is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.